Hon. John Rutledge (one of the delegates of the Federal
Convention) thought the gentleman mistaken both as
to law and fact; for every treaty was law paramount, and
must operate. [Read part of the 9th article of Confederation.]
In England, treaties are not necessarily ratified, as
was proved when the British Parliament took up the last
treaty of peace. A vote of disapprobation dispossessed
Lord Shelburne, the minister, of his place; the Commons
only addressed the king for having concluded a peace; yet
this treaty is binding in our courts and in England. In that
country, American citizens can recover debts due to them
under the treaty; and in this, but for the treaty, what violences
would have taken place! What security had violent
tories, stealers of horses, and a number of lawless men, but
a law that we passed for recognizing the treaty? There
might have been some offenders punished; but if they had
obtained a writ of habeas corpus, no doubt they would have
been relieved. There was an obvious difference between
treaties of peace and those of commerce, because commercial
treaties frequently clashed with the laws upon that
subject; so that it was necessary to be ratified in Parliament.
As a proof that our present Articles of Confederation
were paramount, it was there expressed that France
should enjoy certain privileges. Now, supposing any law
had passed taking those privileges away, would not the
treaty be a sufficient bar to any local or municipal laws?
What sort of power is that which leaves individuals in full
power to reject or approve? Suppose a treaty was unexpectedly
concluded between two nations at war; could individual
subjects ravage and plunder under letters of
marque and reprisal? Certainly not. The treaty concluded,
even secretly, would be a sufficient bar to the establishment.
Pray, what solid reasons could be urged to support
gentlemen's fears that our new governors would wish to
promote measures injurious to their native land? Was it
not more reasonable that, if every state in the Union had
a negative voice, a single state might be tampered with,
and defeat every good intention? Adverting to the objection
relative to the instalment law being done away, he
asked, supposing a person gave security conformable to
that law, whether, judging from precedent, the judges
would permit any further proceedings contrary to it. He
scouted the idea that only ten members would ever be left
to manage the business of the Senate; yet, even if so, our
delegates might be part of that ten, and consequently our
interest secured.

. . . . .

Mr. Pringle: . . . All the gentleman's objections may be
comprised in the following compass: By the article, the
President, with ten senators, if only ten attend, may make
treaties to bind all the states--that the treaties have the
force of, and indeed are paramount to, the laws of the
land--therefore, the President and Senate have a legislative
power; and then he gives scope to a great deal of declamation
on the vast danger of their having such legislative
power, and particularly that they might have a treaty
which might thus repeal the instalment law. This is a
greater power, he says, than the king of France has; the
king of Great Britain has his ratified by Parliament--the
treaties of the French king must be registered. But he conceived
the gentleman was mistaken as to those treaties
made by these monarchs. The king of France registers his
edicts on some occasions, to facilitate the execution, but
not his treaties. The king of Great Britain's treaties are
discussed by Parliament, not for ratification, but to discover
whether the ministers deserve censure or approbation.
The making of treaties is justly a part of their prerogative:
it properly belongs to the executive part of
government, because they must be conducted with despatch
and secrecy not to be expected in larger assemblies.
No such dangers as the gentleman apprehends can ensue
from vesting it with the President and Senate. Although
the treaties they make may have the force of laws when
made, they have not, therefore, legislative power. It would
be dangerous, indeed, to trust them with the power of
making laws to affect the rights of individuals; for this
might tend to the oppression of individuals, who could not
obtain redress. All the evils would, in that case, flow from
blending the legislative, executive, and judicial powers.
This would violate the soundest principles of policy and
government. It is not with regard to the power of making
treaties as of legislation in general. The treaties will affect
all the individuals equally of all the states. If the President
and Senate make such as violate the fundamental laws,
and subvert the Constitution, or tend to the destruction of
the happiness and liberty of the states, the evils, equally
oppressing all, will be removed as soon as felt, as those
who are oppressed have the power and means of redress.
Such treaties, not being made with good faith, and on the
broad basis of reciprocal interest and convenience, but by
treachery and a betraying of trust, and by exceeding the
powers with which the makers were intrusted, ought to be
annulled. No nations would keep treaties thus made. Indeed,
it is too much the practice for them to make mutual
interest and convenience the rule of observation, or period
of duration. As for the danger of repealing the instalment
law, the gentleman has forgot that one article ordains that
there shall be no retrospective law. The President and
Senate will, therefore, hardly ever make a treaty that
would be of this kind. After other arguments to obviate
the objections of the honorable gentleman, Mr. Speaker
concluded with saying, that it was not necessary for him to
urge what further occurred to him, as he saw several of
the honorable members of the Convention preparing,
whose duty it more particularly was, and who were more
able to confute the honorable gentleman in opposition.

Dr. David Ramsay asked if the gentleman meant us
ever to have any treaties at all. If not superior to local laws,
who will trust them? Would not the question naturally be,
"Did you mean, when you made treaties, to fulfil them?"
Establish once such a doctrine, and where will you find
ambassadors? If gentlemen had been in the situation of
receiving similar information with himself, they would
have heard letters read from our ambassadors abroad, in
which loud complaints were made that America had become
faithless and dishonest. Was it not full time that such
conduct as this should be amended?

. . . . .

Hon. Rawlins Lowndes desired gentlemen to consider
that his antagonists were mostly gentlemen of the law, who
were capable of giving ingenious explanations to such
points as they wished to have adopted. He explained his
opinion relative to treaties to be, that no treaty concluded
contrary to the express laws of the land could be valid.
The king of England, when he concluded one, did not
think himself warranted to go further than to promise that
he would endeavor to induce his Parliament to sanction it.
The security of a republic is jealousy; for its ruin may be
expected from unsuspecting security. Let us not, therefore,
receive this proffered system with implicit confidence,
as carrying with it the stamp of superior perfection;
rather let us compare what we already possess with what
we are offered for it. We are now under the government
of a most excellent constitution, one that had stood the test
of time, and carried us through difficulties generally supposed
to be insurmountable; one that had raised us high
in the eyes of all nations, and given to us the enviable
blessings of liberty and independence; a constitution sent
like a blessing from Heaven; yet we are impatient to
change it for another, that vested power in a few men to
pull down that fabric, which we had raised at the expense
of our blood. Charters ought to be considered as sacred
things. In England, an attempt was made to alter the
charter of the East India Company; but they invoked
heaven and earth in their cause; moved lords, nay, even
the king, in their behalf, and thus averted the ruin with
which they were threatened.

[17 Jan.]

Gen. Charles Cotesworth Pinckney observed, that
the honorable gentleman (Mr. Lowndes) who opposed the
new Constitution had asserted that treaties made under
the old Confederation were not deemed paramount to the
laws of the land, and that treaties made by the king of
Great Britain required the ratification of Parliament to
render them valid. The honorable gentleman is surely
mistaken in his assertion. His honorable friend (Chancellor
Rutledge) had clearly shown that, by the 6th, 9th, and
13th Articles of the old Confederation, Congress have a
power to make treaties, and each state is pledged to observe
them; and it appears, from the debates of the English
Parliament, that the House of Commons did not ratify,
but actually censure, the peace made by the king of
Great Britain with America; yet the very members who
censured it acknowledged it was binding on the nation.
[Here the general read extracts from the parliamentary
debates of the 17th and 21st of February, 1784.] Indeed,
the doctrine that the king of Great Britain may make a
treaty with a foreign state, which shall irrevocably bind his
subjects, is asserted by the best writers on the laws and
constitution of England--particularly by Judge Blackstone,
who, in the first book of his Commentaries, (ch. 7,
p. 257,) declares "that it is the king's prerogative to make
treaties, leagues, and alliances, with foreign states and
princes, and that no other power in the kingdom can legally
delay, resist, or annul them." If treaties entered into
by Congress are not to be held in the same sacred light in
America, what foreign nation will have any confidence in
us? Shall we not be stigmatized as a faithless, unworthy
people, if each member of the Union may, with impunity,
violate the engagements entered into by the federal government?
Who will confide in us? Who will treat with us if
our practice should be conformable to this doctrine? Have
we not been deceiving all nations, by holding forth to the
world, in the 9th Article of the old Confederation, that
Congress may make treaties, if we, at the same time, entertain
this improper tenet, that each state may violate
them? I contend that the article in the new Constitution,
which says that treaties shall be paramount to the laws of
the land, is only declaratory of what treaties were, in fact,
under the old compact. They were as much the law of the
land under that Confederation, as they are under this
Constitution; and we shall be unworthy to be ranked
among civilized nations if we do not consider treaties in
this view. Vattel, one of the best writers on the law of nations,
says, "There would be no more security, no longer
any commerce between mankind, did they not believe
themselves obliged to preserve their faith, and to keep
their word. Nations, and their conductors, ought, then, to
keep their promises and their treaties inviolable. This
great truth is acknowledged by all nations. Nothing adds
so great a glory to a prince and the nation he governs, as
the reputation of an inviolable fidelity to his engagements.
By this, and their bravery, the Swiss have rendered themselves
respectable throughout Europe. This national greatness
of soul is the source of immortal glory; upon it is
founded the confidence of nations, and it thus becomes a
certain instrument of power and splendor." Surely this
doctrine is right; it speaks to the heart, it impresses itself
on the feelings of mankind, and convinces us that the
tranquillity, happiness, and prosperity, of the human race,
depend on inviolably preserving the faith of treaties.

Burlamaqui, another writer of great reputation on political
law, says "that treaties are obligatory on the subjects of
the powers who enter into treaties; they are obligatory as
conventions between the contracting powers; but they
have the force of law with respect to their subjects." These
are his very words: "Ils ont force de loi a l'égard des sujets,
considérés comme tels; and it is very manifest," continues he,
"that two sovereigns, who enter into a treaty, impose, by
such treaty, an obligation on their subjects to conform to
it, and in no manner to contravene it." It is remarkable
that the words made use of by Burlamaqui establish the
doctrine, recognized by the Constitution, that treaties shall
be considered as the law of the land; and happy will it be
for America if they shall be always so considered: we shall
then avoid the disputes, the tumults, the frequent wars, we
must inevitably be engaged in, if we violate treaties. By our
treaty with France, we declare she shall have all the privileges,
in matters of commerce, with the most favored nation.
Suppose a particular state should think proper to
grant a particular privilege to Holland, which she refuses
to France; would not this be a violation of the treaty with
France? It certainly would; and we in this state would be
answerable for the consequences attending such violation
by another state; for we do not enter into treaties as separate
states, but as united states; and all the members of the
Union are answerable for the breach of a treaty by any one
of them. South Carolina, therefore, considering its situation,
and the valuable produce it has to export, is particularly
interested in maintaining the sacredness of treaties,
and the good faith with which they should be observed by
every member of the Union. But the honorable gentleman
complains that the power of making treaties is vested in
the President and Senate, and thinks it is not placed so
safely with them as with the Congress under the old Confederation.
Let us examine this objection. By the old Confederation,
each state had an equal vote in Congress, and
no treaty could be made without the assent of the delegates
from nine states. By the present Constitution, each
state sends two members to the Senate, who vote per capita;
and the President has power, with advice and consent of
the Senate, to make treaties, provided two thirds of the
Senate present concur. This inconvenience attended the
old method: it was frequently difficult to obtain a representation
from nine states; and if only nine states were
present, they must all concur in making a treaty. A single
member would frequently prevent the business from being
concluded; and if he absented himself, Congress had no
power to compel his attendance. This actually happened
when a treaty of importance was about to be concluded
with the Indians; and several states, being satisfied, at particular
junctures, that the nine states present would not
concur in sentiments on the subject of a treaty, were indifferent
whether their members attended or not. But now
that the senators vote individually, and not by states, each
state will be anxious to keep a full representation in the
Senate; and the Senate has now power to compel the attendance
of its own members. We shall thus have no delay,
and business will be conducted in a fuller representation
of the states than it hitherto has been. All the members of
the Convention, who had served in Congress, were so sensible
of the advantage attending this mode of voting, that
the measure was adopted unanimously. For my own part,
I think it infinitely preferable to the old method. So much
for the manner of voting.

Now let us consider whether the power of making treaties
is not as securely placed as it was before. It was formerly
vested in Congress, who were a body constituted by
the legislatures of the different states in equal proportions.
At present, it is vested in a President, who is chosen by the
people of America, and in a Senate, whose members are
chosen by the state legislatures, each legislature choosing
two members. Surely there is greater security in vesting
this power as the present Constitution has vested it, than
in any other body. Would the gentleman vest it in the
President alone? If he would, his assertion that the power
we have granted was as dangerous as the power vested by
Parliament in the proclamations of Henry VIII., might
have been, perhaps, warranted. Would he vest it in the
House of Representatives? Can secrecy be expected in
sixty-five members? The idea is absurd. Besides, their sessions
will probably last only two or three months in the
year; therefore, on that account, they would be a very unfit
body for negotiation whereas the Senate, from the
smallness of its numbers, from the equality of power which
each state has in it, from the length of time for which its
members are elected, from the long sessions they may
have without any great inconveniency to themselves or
constituents, joined with the president, who is the federal
head of the United States, form together a body in whom
can be best and most safely vested the diplomatic power of
the Union.

Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.